Citation Nr: 0216423
Decision Date: 11/15/02 Archive Date: 11/25/02
DOCKET NO. 00-18 611A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to an effective date prior to May 14, 1998 for a
30 percent rating for status post fistulectomy.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
Robert A. Leaf, Counsel
INTRODUCTION
The veteran had active service from October 1964 to March
1965.
This appeal to the Board of Veterans' Appeals (Board) stems
from an August 1998 rating decision of a regional office (RO)
of the Department of Veterans Affairs (VA). The RO raised
the veteran's evaluation for status post fistulectomy from
noncompensable to 30 percent, effective May 14, 1998. The
veteran perfected a timely appeal of that decision,
disagreeing with the effective date assigned for the increase
to 30 percent for status post fistulectomy.
FINDINGS OF FACT
1. A claim for an increased rating for status post
fistulectomy was received by VA on June 23, 1997.
2. There is no competent evidence of record showing that
status post fistulectomy increased in disability at any time
during the period from June 23, 1996 through May 13, 1998.
CONCLUSION OF LAW
An effective date prior to May 14, 1998 for assignment of a
30 percent rating for status post fistulectomy is not
warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 1991
& Supp. 2002); 38 C.F.R. §§ 3.400, 4.114, Diagnostic Codes
7332, 7335 (2001), 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be
codified at sections including 38 C.F.R. §§ 3.102, 3.159 and
3.326).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
A claim seeking an increased rating for status post
fistulectomy was received on June 23, 1997.
A VA examination of the rectum and anus was performed in
August 1997. The veteran complained of occasional, bright
red rectal bleeding approximately once a month, which had
increased in frequency in the last two years. He noted that
bleeding was sometime profuse and lasted several days to
weeks. Clinical inspection disclosed good sphincter tone.
The assessment was history of fistula in ano with an earlier
attempt at surgical repair, with the disability having
remained virtually asymptomatic until about two years before
when the veteran had repeated episodes of bleeding of
increased frequency. He denied any soiling, incontinence,
diarrhea or tenesmus.
The veteran was afforded a VA examination of the rectum and
anus on May 14, 1998. He reported blood with bowel
movements. In the past six months, he had also noted
occasional incontinence, four times a month, and he wore a
pad because of this. Clinical inspection revealed lax rectal
tone. Bearing down did not cause his sphincter to clamp down
appropriately. No blood was noted on the pad the veteran
wore, but fecal matter was seen. The impressions included
status post fixed fistulectomy; loss of full rectal sphincter
response.
Associated with the claims file are VA medical records, dated
from June 1996 to May 1998. They reflect the veteran's
treatment for disorders other than status post fistulectomy.
During this period of time, there are complaints of rectal
bleeding, for which no cause was specified. VA records
subsequent to this time show that a sigmoidoscopy was
performed on the veteran in April 1999. The rectum, sigmoid
colon, descending colon and splenic flexure showed normal
mucosa. The examination was described as normal.
Received in September 2000 was the veteran's appeal seeking
an earlier effective date for assignment of an increased
rating for status post fistulectomy. The veteran stated
that, due to the nature of his disability, he averaged about
20 days of the month when the condition did not create
problems; the remaining third of the month was "hell". He
called the Board's attention to his treatment records and
requested that the disability not be rated on a single
compensation and pension examination.
II. Analysis
On November 9, 2000, the President approved the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096, which made several amendments to the law
governing VA claims. Among other things, this law eliminates
the concept of a well-grounded claim and redefines the
obligations of VA with respect to its duty-to-assist
obligation. It revised section 5103 to impose on VA, upon
receipt of a complete or substantially complete application,
a duty to notify the claimant of any information, and any
medical or lay evidence, not already submitted that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West Supp. 2001). The VCAA also provides that VA shall make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate his claim, and provide a medical
examination when such an examination is necessary to make a
decision on the claim. 38 U.S.C.A. § 5103A (a)(1), (d) (West
Supp. 2001). Implementing regulations were promulgated at
66 Fed. Reg. 45,620 (August 29, 2001) (to be codified at
sections including 38 C.F.R. §§ 3.102, 3.159 and 3.326).
By the August 2000 statement of the case provided the
appellant, the RO discussed the pertinent evidence, provided
the laws and regulations governing the claim, and essentially
notified the appellant of evidence needed to prevail on the
claim. Also, in a letter dated in April 2002, the RO
specifically informed the veteran of the VCAA and its
requirements and of what information he needed to provide in
the event that there were outstanding private treatment
records that VA needed to retrieve. The veteran was
alternately advised that he could obtain the records himself
and send them to the RO. Further, he was advised that the RO
would obtain VA medical records identified by the veteran.
Accordingly, the statutory and regulatory requirement that VA
notify a claimant as to what evidence, if any, will be
obtained by the claimant and what evidence, if any, will be
retrieved by VA, has been met. See Quartuccio v. Principi,
16 Vet App. 183 (2002) (addressing the duties imposed by 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159).
Pertinent postservice medical records have been associated
with the record. Significantly, the veteran has not
identified any additional existing evidence that is necessary
for a fair adjudication of his claim that has not been
obtained. There is no indication that additional evidence
exists and can be obtained on the issue here in question.
Adjudication of this appeal, without referral to the RO for
further consideration under the new law and regulations,
poses no risk of prejudice to the appellant. See, e.g.,
Bernard v. Brown, 4 Vet. App. 384 (1993).
Unless otherwise provided, the effective date of an award
based on a claim for increase for compensation shall be fixed
in accordance with the facts found, but shall not be earlier
than the date of receipt of the application therefor. 38
U.S.C.A. § 5110(a) (West 1991).
The effective date for an award of increased disability
compensation is the date it was ascertainable that an
increase in disability had occurred, if a claim for increase
is received within one year of that date. If a claim is not
received within one year, the effective date is the date of
receipt of claim. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38
C.F.R. § 3.400(o)(2) (2002). If entitlement was not shown
until after the date of claim, then the effective date is the
date entitlement arose. 38 C.F.R. § 3.400 (o)(1) (2002).
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can be
determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2001).
Separate diagnostic codes identify the various disabilities
and the criteria that must be met for specific ratings. The
regulations require that, in evaluating a given disability,
the disability be viewed in relation to its whole recorded
history. 38 C.F.R. § 4.2 (2002). Also, where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (2002).
Fistula in ano is rated as for impairment of sphincter
control. 38 C.F.R. § 4.114, Diagnostic Code 7335 (2002).
The following ratings are provided for impairment of
sphincter control of the rectum and anus: Complete loss of
sphincter control warrants 100 percent. Extensive leakage
and fairly frequent involuntary bowel movements warrants 60
percent. Occasional involuntary bowel movements,
necessitating wearing of pad warrants 30 percent. Constant
slight, or occasional moderate leakage warrants 10 percent.
Healed or slight, without leakage warrants 0 percent.
38 C.F.R. § 4.114, Diagnostic Code 7332 (2002).
Since the date of receipt of the most recent claim for an
increased rating for status post fistulectomy is June 23,
1997, the earliest possible effective date for assignment of
a rating greater than noncompensable is June 23, 1996. The
determination as to the proper effective date for the
assignment of a higher rating for the veteran's status post
fistulectomy turns, however, on when it was factually
ascertainable that an increase in disability occurred.
Here, the report of the VA examination in August 1997 is the
only pertinent item of medical evidence relating to the
status of the veteran's post operative fistulectomy during
the applicable time frame relating to assignment of an
earlier effective date for an increased evaluation for that
disability. Significantly, neither the veteran's subjective
complaints nor the objective clinical findings then indicated
either constant slight, or occasional moderate leakage, the
criteria required for assignment of a 10 percent evaluation
for status post fistulectomy, or occasional involuntary bowel
movements, necessitating wearing of pad, the criteria
required for assignment of a 30 percent evaluation for status
post fistulectomy. While there are complaints of rectal
bleeding prior to May 14, 1998, this has not been attributed
to the fistula. Significantly, on VA examination of that
date, the physician noted a conclusion of rectal bleeding,
cause unknown. Also, a sigmoidoscopy examination in 1999
showed no current evidence of a fistula, and the rating code
does not list bleeding as a manifestation of a fistula.
The report of the May 14, 1998 VA examination first
demonstrates manifestations of status post fistulectomy
consistent with occasional involuntary bowel movements,
necessitating wearing of pad, the criteria required for
assignment of a 30 percent evaluation. The record shows that
entitlement to a 30 percent evaluation for status post
fistulectomy first arose on May 14, 1998, a point in time
after the date of receipt of the claim seeking an increased
rating for the disability. Under governing criteria
referenced above, an effective date for a 30 percent rating
for status post fistulectomy may not be assigned prior to May
14, 1998.
The Board has taken note of the veteran's contention that the
effective date for assignment of a 30 percent evaluation for
status post fistulectomy should not be based on a the results
of a single rating examination. In fact, a review of medical
records pertinent to the time frame encompassed by the
effective date claim does not demonstrate manifestations of
status post fistulectomy sufficient to satisfy criteria for
assignment of either a 10 percent rating or a 30 percent
rating at any time prior to May 14, 1998.
For all the foregoing reasons, the claim for an effective
date prior to May 14, 1998 for a 30 percent rating for status
post fistulectomy must be denied. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the appellant's claim, that
doctrine is not applicable in the current appeal. 38
U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1991).
ORDER
An effective date prior to May 14, 1998 for a 30 percent
rating for status post fistulectomy is denied.
Iris S. Sherman
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.